This blog presents news items and resources relating to trial advocacy and the legal system, with a focus on Washington State. It was developed to support the Trial Advocacy Program at the University of Washington School of Law, but now has a broader coverage and a wider audience. In addition to information about trials and trial practice, you'll find notes about appellate practice, the courts, access to justice, and related topics.

Friday, December 16, 2011

A new documentary explores the rhetoric and politics of "tort reform." Hot Coffee: Is Justice Being Served? begins with the the case that has been fodder for comedians and politicians, Liebeck v. McDonald's.

Seinfeld mocked it. Letterman ranked it in his top ten list. And more than fifteen years later, its infamy continues. Everyone knows the McDonald’s coffee case. It has been routinely cited as an example of how citizens have taken advantage of America’s legal system, but is that a fair rendition of the facts? Hot Coffee reveals what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s, while exploring how and why the case garnered so much media attention, who funded the effort and to what end. After seeing this film, you will decide who really profited from spilling hot coffee.

The next segment of the film looks at how a tort-reform damage cap has affected one family with a seriously disabled son.

And the third segment features Oliver Diaz, a justice of the Mississippi Supreme Court who successfully campaigned against a candidate backed by the U.S. Chamber of Commerce, only to be indicted for accepting a bribe and then for tax fraud. Despite his acquittals, the charges kept him off the bench for years and probably cost him his next election.

The filmmaker, Susan Saladoff, is a lawyer who took on this project – her first film – during a sabbatical from her practice. She definitely has a point of view, and in the film and on the website encourages people to take action opposing tort reform. Whether or not you ultimately share her position, the film offers important information, with clips from advocates on both sides of the debate.
Check it out: KF1250.H68 2011 at Classified Stacks.

Tuesday, December 13, 2011

Neuroscientists seek to determine how brain function affects behaviour,
and the law is concerned with regulating behaviour. It is therefore
likely that developments in neuroscience will increasingly be brought to
bear on the law. This report sets out some of the areas where
neuroscience might be of relevance, along with some of the limits to its
application. Specific issues discussed include risk assessment in
probation and parole decisions; detecting deception; assessing memory;
understanding pain; and Non-Accidental Head Injury NAHI).

The experts conclude that the science is potentially relevant to the law, but that it's too early to apply neuroscience directly in legal proceedings. They encourage further dialogue between neuroscientists and people in law. See Maria Cheng, UK experts: Too soon to use brain science in court, Olympian (via AP), Dec. 12, 2011.

The 46-page report is available for free download in PDF, Kindle, or E-Reader format.

Sunday, December 4, 2011

Today's News Tribune has an investigative report on WestNET, the West Sound Narcotics Enforcement Team, a federally funded drug task force based in Kitsap County, with tendrils reaching into Pierce County.
A Dirty Little War, News Tribune, Dec. 4, 2011.

While the task force's mission is to go after drug-trafficking organizations, much of its effort was spent on low-level cases. Critics say that the officers often had a "cowboy" mentality, breaking down doors and bursting into homes wearing paramilitary gear.

The newspaper's review of court records indicates that the task force often inflated its success rate.

At least two people allege that one officer (Roy Alloway, who has since pleaded guilty to federal firearms and tax offenses) pressured them to give evidence that was false, or said that they made statements they did not.

In A story like WestNET's takes considerable work, News Tribune, Dec. 4, 2011, the journalists describe the public records they used, from courts (federal and state) and law enforcement agencies.
The Tahoma Narcotics Enforcement Team (TNET), based in Pierce County, presents a different picture. All of its cases went to federal court, while most of WestNET's cases went to federal court. TNET has a much higher success rate (although the journalists did not have a record of cases the prosecutors declined. How WestNET compares with Pierce County task force, News Tribune, Dec. 4, 2011.

If you'd like to read about a drug task force gone horribly wrong, I recommend Nate Blakeslee, Tulia: Race, Cocaine, and Corruption in a Small Texas Town, HV8079.N3 B55 2005 at Good Reads. While focusing on one notoriously bad case – with a renegade officer at the center of the action – Blakeslee also discusses the structural factors that make drug task forces susceptible to abuse of power, sloppy police work, and worse. See chapter 11, The Jump Out Boys.

Thursday, December 1, 2011

Spokane County prosecuting attorney Steve Tucker personally negotiated a plea agreement with a defendant who shot a gun into a neighbor's house. The judge wanted to ask him some questions about it, but he chose not to appear, sending one of his assistants. The judge said she wouldn't approve the plea. Prosecutor Rankles Judge Spokesman Review, Nov. 26, 2011.

Friday, November 25, 2011

A Shoreline pediatrician will have a second trial in a civil case brought by young men who allege he engaged in improper sexual conduct with them when they were minors. The doctor admits to much of the conduct but says it was a legitimate part of his mentoring the boys.

Originally there were thee cases filed by four young men and their families. The cases were consolidated. The jury ordered the doctor to pay damages to three young men and their families, but the sum was much lower than the plaintiffs had sought. Now two of the plaintiffs have withdrawn from the suit.

The retrial follows juror misconduct in the first trial:

a juror failed to disclose that she and her husband had been sued for medical malpractice;

a juror told other jurors about her experience of sexual abuse but had not disclosed it during voir dire;

jurors shared newspaper stories and watched television news about the case.

Wednesday, November 23, 2011

In an effort to keep jurors from going online to discuss cases or look up information outside the trial, the Washington State Courts are introducing a new poster with a picture of a smart phone and the headline "Focus on the Courtroom."

Trial Advocacy: Planning, Analysis, and Strategy (3d ed. 2011) is the basic text that covers all aspects of the trial, from developing a case theory all the way through closing arguments. It comes with a DVD showing a simulated trial that is discussed throughout the book ("the Freck Point Trial") and a "scene of the crime" video that walks the viewer through a tavern where a crime that's the subject of another mock trial took place.

The publisher's website also has a page of bonus features, such a booklet on voir dire by Karen Koehler (who also teaches in the UW's Trial Ad program), a sample juror questionnaire, and transcripts from the trial in which the City of Seattle tried to keep the Sonics in town.

cover of Evidence text

Evidence: Skills, Strategies, and Assignments for Pretrial and Trial (2012) focuses on the nitty-gritty of handling evidence – objecting to it if you don't want it in, or introducing it and meeting objections if you do.

Evidence is designed for use in different contexts: as a supplement in a Trial Ad course, as a supplement for an Evidence class, as a text for a stand-alone class, or as a text for a lawyer who wants to improve his or her skills. (I could imagine it being used by college mock trial teams, too.)

Like Trial Advocacy, it includes a DVD with the Freck Point trial. It also has a CD with case files to go with exercises. The publisher's page is here. The catalog record is here. So far, only one document is listed on the Bonus Materials page: a motion in limine in the Seattle Sonics case.

When I went to law school 30 years ago, I think it was typical for Evidence to be taught about the same way as other classes – in a large lecture hall, with a professor at the front and 100 students flipping through casebooks and statutory/rules supplements as they sat at long tables. I'm pretty sure we were never asked to rise and object to or defend proffered testimony. At the end of the semester, we scrawled exam answers in bluebooks, just as we did for all our classes.

This was good preparation for my first post-law-school job, clerking for an appellate judge. But actually handling evidence in a trial? No way.

I think that Evidence pedagogy has advanced considerably. For instance, the text by Peter Nicolas (a UW professor), Evidence: A Problem-Based and Comparative Approach, includes over 100 problems. Publisher's page. Catalog record. Still, though, the problems are meant for class discussion, not for trial simulations.

Berger, Mitchell, and Clark's book devotes all of Chapter 5 to exercises, and they aren't the sort that can be done from the back row of a lecture hall. There are roles for witnesses, prosecutors (or plaintiff's counsel), and defense counsel. (The instructor gets a CD with instructions for the actors who play witnesses.) Students are asked to address evidentiary issues either in motions in limine or as objections during trial.

Evidence goes into more detail about evidence than does Trial Advocacy – but the difference isn't night and day. Chapter 4 in Evidence, "Exhibits: Introducing and Displaying Them," tracks Chapter 7 in Trial Advocacy, "Introducing Exhibits," very closely. In fact, I was surprised when I compared the two chapters that the Trial Advocacy chapter went on longer, discussing evidence issues not in the Evidence chapter. Further examination found that the content was just elsewhere in the book.

So that classes can use Evidence without having to research rules and caselaw, the authors insert a text within a text. Morgan's Evidence Handbook is an 83-page chapter (itself divided into chapters) summarizing the law of evidence in the fictional state of Major. (Major's evidence rules, like Washington's and many other states', are modelled on the Federal Rules of Evidence.)

I'm ambivalent about this. I like the idea of giving the students enough law so they can focus on the skills of submitting evidence, objecting, and so on. But as a librarian, I would like more classes to encourage students to look things up. Research is a skill they'll need too, even as trial lawyers. Of course, an instructor could choose to have the students do their exercises in a real jurisdiction or a hybrid of Major and a real jurisdiction. Students could be told to use Morgan's Evidence Handbook and to deepen their knowledge of evidence with works from their own state, such as The Law of Evidence in Washington by Robert H. Aronson and the Washington Practice volumes Evidence Law and Practice and Courtroom Handbook on Washington Evidence and by Karl B. Tegland.

Both books are very accessible. The font is a little larger than is typical in lawbooks. Checklists, pointers, and practice notes abound, indicated with consistent icons (e.g., a painter at an easel for illustrations, a bewigged judge or barrister pointing at the text for pointers).

Chapters are introduced with quotations drawn from a wide range of sources, from Shakespeare's Julius Caesar to the recent classic, My Cousin Vinny.

The books are practical, giving them impression that the authors are sharing wisdom they have accumulated through years of experience. There are some citations to the Federal Rules of Evidence and cases, but these books are guides, not treatises. You won't find footnotes, bibliographies, tables of authorities, or recommendations for further reading.

This is part of what makes the books accessible: they can be read easily, without wading through dense citations. I'm curious, though, so when I read "Studies show that we retain less than 15 percent of what we hear, but we remember over 80 percent of what we see and hear" (Evidence at 118; Trial Advocacy at 26), I wonder: what studies? where?

I think the publisher probably could have done a better job with the photographs: they should be sharper.

The Freck Point case is set up to be either a criminal case (murder) or a civil case (wrongful death). Within one class, students could be working on criminal or civil examples, using the same fact pattern, exhibits, and witnesses. The case is adapted from a story that was sensational enough to merit a true crime reporting by Ann Rule (seeA Rose for Her Grave and Other True Cases) – a choice that must be intended to hold students' interest for a semester.

Thanks to Ron Clark's giving me review copies, these two books will soon be available in the library.

Tuesday, November 1, 2011

There's a big new study of federal sentencing AND the federal government has begun reviewing the sentences of people serving time for crack cocaine offenses.

Study

Yesterday the United States Sentencing Commission submitted to Congress a huge (645 pages!) assessing the impact of statutory minimum mandatory sentences. Here are a few excerpts from the press release:

"While there is a spectrum of views on the Commission regarding mandatory minimum penalties, the Commission unanimously believes that certain mandatory minimum penalties apply too broadly, are excessively severe, and are applied inconsistently across the country. The Commission continues to believe that a strong and effective guideline system best serves the purposes of sentencing established by the Sentencing Reform Act of 1984.”
. . .
The Commission also addresses the overcrowding in the federal Bureau of Prisons, which is over-capacity by 37 percent.
. . .
The report was undertaken pursuant to a directive from Congress to examine mandatory minimum penalties, particularly in light of the Supreme Court’s 2005 decision in Booker v. United States, which rendered the federal sentencing guidelines advisory.
. . .

More than 75 percent of those offenders convicted of an offense carrying a mandatory minimum penalty were convicted of a drug trafficking offense.

Hispanic offenders accounted for the largest group (38.3%) of offenders convicted of an offense carrying a mandatory minimum penalty, followed by Black offenders (31.5%), White offenders (27.4%), and Other Race offenders (2.7%).

Almost half (46.7%) of all offenders convicted of an offense carrying a mandatory minimum penalty were relieved from the application of such penalty at sentencing for assisting the government, qualifying for "safety valve" relief, or both.

Black offenders received relief from a mandatory minimum penalty least often (in 34.9% of their cases), compared to White (46.5%), Hispanic (55.7%) and Other Race (58.9%) offenders. In particular, Black offenders qualified for relief under the safety valve at the lowest rate of any other racial group (11.1%), compared to White (26.7%), Hispanic (42.8%) and Other Race (36.6%), either because of their criminal history or the involvement of a dangerous weapon in connection with the offense.

Receiving relief from a mandatory minimum penalty made a significant difference in the sentence ultimately imposed. . . .

Across the country on Tuesday, federal judges began reviewing the prison sentences of thousands of men and women jailed on crack cocaine charges. Many inmates could be released or see their sentences sharply reduced.

Congress voted last year to ease federal sentencing guidelines for crack cocaine. But a decision this summer to revisit old drug cases has sparked new controversy.

Monday, October 10, 2011

As Jay Mehring's case against Spokane and the city's chief of police for defamation and wrongful termination approaches its trial date, the judge says she is "sick of" the attorneys' behavior:

Spokane County Superior Court Judge Kathleen O'Connor had choice words Thursday for attorneys on both sides of the Jay Mehring civil case.

* * *

She ordered attorneys Bob Dunn and Ellen O'Hara to appear before her this afternoon "no matter what" with an agreed upon statement in the case and a list of issues that are in dispute and issues that aren't.

She threatened to hold the lawyers in contempt if they weren't able to do so "because I am sick of this."

The judge also warned that she would have no time to look at motions for reconsideration, "so assume that they're all going to be denied."

* * *

The judge also picked up a report she said had been submitted that morning in violation of a previous order.

"See this? The one I got today? In the waste basket!" she said, holding up the waste basket.

Just today I was about to give a presentation in a classroom when I discovered that my PowerPoint file was not in the folder where I thought I'd saved it. Fortunately I found it, and it was just a small classroom talk, not a million-dollar trial, but the two minutes when I wasn't sure where the darn slides had gone gave me a taste of what these articles (and podcast) are talking about.

Saturday, October 1, 2011

DNA identification, economic estimates of damages, psychiatric evidence of competence to stand trial, engineers' testimony about product defects—there's a lot of scientific testimony in today's courtrooms. How can judges—who are not statisticians, geneticists, economists, epidemiologists, engineers, or psychiatrists—intelligently manage this flood of information?

Sunday, September 25, 2011

Today is the 30th anniversary of Sandra Day O'Connor being sworn in as a Supreme Court Justice.

The appointment of the first woman to the Supreme Court was very big news back in 1981, when I was a law student. But most of today's law students have always had at least one woman one the Supreme Court. Today's 1Ls are starting law school with three female justices on the Court. (Beloit's Mindset List annually offers reminders of how a younger generation's experience differs from the last's.)

First, how many women did Justice O'Connor join when she was sworn in?

51 women had been been commissioned before Sept. 25, 1981. Only 23 were still serving. (That is, their commission date was before that date, but their termination date was after it.)

And what were the corresponding numbers for men?

2023 men had been commissioned, and 619 were still serving.

President Reagan made history by appointing the first woman to the Supreme Court. What was his record throughout the federal courts?

court

women

men

U.S. Supreme Court

1

3

courts of appeal

6

77

all federal courts

30

334

An important part of the historical context is that women were a minority in the legal profession. 1972 was the first year when women were over 10% of law school enrollment nationally, so in the 1980s there'd wasn't as large a pool of experienced female lawyer from whom to select judges as there is today.

The landmark case of Miranda v. Arizona launched one of the best-known aspects of criminal procedure, the Miranda warnings before custodial police interrogation. The controversial case and the rights it vouchsafed have been under siege for decades. The scope of Miranda and availability of remedies are increasingly constricted. Please join our distinguished panelists
for a discussion about the past and present of Miranda.

CLE Program: 1.5 credits approved.
This event is free and open to the general public.
The cost of CLE credits is $15.
RSVP here.
Contact Kathy Kline at (206) 543-8881 or email.

This exploratory
study examined lay people’s evaluations of judicial decision-making, specifically of the judicial decision-making process and the judiciary’s
legitimacy. Seven hundred participants were presented with three judicial decisions, which were portrayed as following on the heels of solid and appropriate legal procedure.

Each decision was accompanied by one of four types of reasoning. Participants were asked to evaluate the acceptability of the decisions, focusing on the manner in which they were made and the legitimacy of the decision-maker, regardless of their outcomes. The study yielded four findings.

First, lay people’s judgments were highly contingent on the outcome of the judges’ decisions. Consistent with the theory of motivated reasoning, participants found the decisions highly acceptable when they agreed with the judges’ decision, but deemed them relatively unacceptable when they disagreed with them.

Second, participants were indifferent to the modes of reasoning when they agreed with the outcomes of the decisions, but were differentially sensitive to the modes of reasoning when the judges’ decisions frustrated their preferred outcomes.

Third, when participants were sensitive to the modes of reasoning, they gave higher ratings of acceptability to decisions that openly admitted to good reasons on both sides of the case as compared with decisions accompanied by reasons that supported one side of the case exclusively. Giving no reasons at all was found to be more acceptable than giving a single, curt reason.

Fourth, the findings replicated the coherence effect. Implications for the legitimacy of the judiciary are discussed.

Tuesday, September 13, 2011

The policy-making body of the federal judiciary approved a new standard today that instructs judges to limit sealing entire civil cases to only extraordinary circumstances.
The Judicial Conference of the United States said the new policy emphasizes that sealing an entire case should be the last resort.
Judges should first explore narrower alternatives, such as blacking out information or sealing particular documents, the panel said.

Tuesday, September 6, 2011

Wouldn't it be great to have the Federal Rules of Civil Procedure, the Federal Rules of Evidence, or the Federal Rules of Criminal Procedure with you without toting the bound books? Now you can: CALI and the Legal Information Institute have released Federal Rules Ebooks, with the rules and official comments, in a format compatible with iPhone, iPad, and Nook. (Kindle support is coming soon.)

The books are free, but you are encouraged to donate to the Legal Information Institute, a nonprofit based at Cornell that puts a lot of resources into making law accessible.

Thursday, September 1, 2011

California has adopted a new statute which clarifies that jurors may not use social media and the Internet – such as texting, Twitter, Facebook, and Internet searches – to research or disseminate information about cases, and can be held in criminal or civil contempt for violating these restrictions.

The new statute, 2011 Cal. Laws chap. 181, expands the state's existing jury instructions which currently, at the start of trial and prior to any recesses or breaks, admonish jurors not to discuss the case they are sitting on with each other or anyone else before deliberations. The current instructions make no specific mention of electronic research or communications.

I once was at a CLE seminar where one of the deans of our local employment bar said that if you ever have the opportunity to try a case, you should leap at it — they’re a lot of fun.

Fun? Yes, actually they are. But I’m pretty sure that my fun was not one of the guiding factors in my clients’ decision to hire me.

The truth of the matter is that your job as a civil litigator is not to win at all costs. Instead, it is to make your client’s problem go away. And making your client’s problem go away often involves settlement. The deal is to get a good deal.

Daniel Osazuwa, an inmate serving time for bank fraud, was convicted of assaulting a guard. His defense was that he was only trying to embrace the other man—a common way to greet someone in his home country of Nigeria;mdash;and that the guard reacted badly because the inmate is gay.

The prosecution says that its reason for challenging the juror "because she told the court she had close Nigerian friends when the panel was asked if anyone had positive or negative attitudes toward that nationality." Id. To me this stated reason seems at least as shaky as if the challenge were based on sexual orientation. Should an immigrant should be deprived of a juror who has friends of his nationality?

This is a case in which the prosecutor clearly invaded privileged communications that contained a detailed, explicit road map of the defendant’s trial strategy. Compounding the problem, the prosecutor not only failed to inform the defendant and the trial court of the invasion immediately, but also continued to handle the case, to meet repeatedly with witnesses and investigators and ultimately to try the case to conclusion more than one year after the invasion occurred. Under these circumstances, any remedy other than the dismissal of the criminal charge of which the defendant was convicted would constitute a miscarriage of justice.

The dissent opens:

Until today, no federal or state court in this country ever has presumed a sixth amendment violation on the basis of a government’s unintentional breach of the attorney-client relationship, and no federal or state court ever has dismissed criminal charges due to such a breach. Indeed, until today, this court never has ordered the dismissal of criminal charges as a remedial
measure.

I haven't read all the pages of argument on each side, but even from this much, it seemed well worth a post.

Monday, July 18, 2011

A forthcoming article explores the role of implicit social cognition in police stops. L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95 Minn. L. Rev. __ (forthcoming 2011), available athttp://ssrn.com/abstract=1625755.

Monday, June 20, 2011

The Washington State Supreme Court overturned a conviction this month because of the white prosecutor's remarks that black witnesses had not testified against the black defendant because of a purported code that "black folk don't testify against black folk." State v. Monday, No. 82736-2 (June 29, 2011), links to opinions on court's website: majority, concurrence, dissent. See Jennifer Sullivan, Seattle murder conviction tossed out over 'racist' comments, Seattle Times, June 9, 2011.

This statement is untrue and offensive. We know from experience that the "no snitch" ethic is not confined to any particular race or background. We see it commonly across a wide range of cases that we handle. On the other hand, we also see witnesses of all races and backgrounds participate fully in the criminal-justice system, fulfilling an important civic duty that keeps us all safe and protects our constitutional rights.

Compounding the error, the statement has the unfortunate and ironic effect of further eroding trust in the criminal-justice system. By decrying the "no snitch" ethic in this manner, the senior deputy prosecutor created yet another reason for some to believe that our justice system is biased and racist.

Now an appeal is arguing that the same deputy prosecutor (James Konat) made inappropriate comments in his closing argument in the trial of Sebastian Burns who was convicted with Atif Rafay of killing Rafay's parents and sister. Konat said that the crime was worse than a Middle East beheading of a U.S. citizen, a comparison the brief argues was an appeal to nationalism and prejudice. Prosecutor's comments cited in call for new Sebastian Burns trial | Seattle Times Newspaper, June 20, 2011.

Sunday, June 19, 2011

Gene S. Anderson, who served as the U.S. Attorney for the Western District of Washington 1981-89, died on March 27, 2011. He was noted for his prosecutions of white collar crime, both in the King County Prosecutor's Office and then on the federal level. He also worked with his counterparts in other jurisdictions to convict 20 members of the Order, a neo-Nazi group. A memorial will be held Friday, June 24, at 4 pm in the U.S. Courthouse, 700 Stewart St. Gene S. Anderson: memorial to honor trailblazing prosecutor, Seattle Times, June 18, 2011.

Saturday, June 18, 2011

For many black congregations, this weekend’s celebration of Juneteenth will feature a special emphasis on exposing the racial biases of our nation’s criminal justice system.

Since attorney Michelle Alexander wrote The New Jim Crow: Mass Incarceration in the Age of Colorblindness, a network of churches has joined her in the fight against a criminal justice system that targets poor minority communities and locks up a disproportionate percentage of African American men.

The Samuel DeWitt Proctor Conference, a group of thousands of black churches involved in local and global social justice issues, is coming together for Juneteenth to galvanize faith-based action against the new Jim Crow that Alexander writes about in her book.

Juneteenth is a celebration of African American freedom and accomplishment. The Washington State legislature declared:

The legislature recognizes that on June 19, 1865, Union soldiers landed at Galveston, Texas with news that the Civil War had ended and the slaves were now free; that this was two and a half years after President Lincoln signed the Emancipation Proclamation on January 1, 1863; that the end of slavery brought on new challenges and realities in establishing a previously nonexistent status for African-Americans in the United States; that racism and continued inequality is the legacy of slavery and acknowledging it is the first step in its eradication; and that since 1980 June 19th has been celebrated as Juneteenth across the United States as a day for people to come together in the spirit of reconciliation to commemorate the contributions of African-Americans to this country's history and culture.

The legislature declares that an annual day of recognition be observed in remembrance of the day the slaves realized they were free as a reminder that individual rights and freedoms must never be denied.

The legislature declares that an annual day of recognition be observed in remembrance of the day the slaves realized they were free as a reminder that individual rights and freedoms must never be denied.

The cover story in The Stranger describes in some detail the painful and moving testimony by a Seattle woman who was raped and stabbed and whose partner was raped, stabbed, and killed. The Bravest Woman in Seattle, June 14, 2011.

The area of statistical reasoning applied to forensic science has undergone a rapid growth and development both theoretically but also in applied research, becoming a highly interdisciplinary field. This conference is the only forum where police officers, forensic scientists, jurists, scholars from related disciplines and statisticians meet to discuss the constraints, mechanisms and opportunities to provide statistical and inferential support to the decision making process either at level of the investigation or in court.

The Washington State Bar Association has approved the July 18, 2011 ICFIS program for 7 hours of general CLE credit, and the July 19-21 ICFIS conference for 18 hours of general CLE credit.

Stressing that children are not "miniature adults," a divided U.S. Supreme Court on Thursday held that the police must consider a juvenile suspect's age in deciding whether the child is in custody and must be given Miranda warnings.

"It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave," wrote Justice Sonia Sotomayor for the 5-4 majority. "Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child's age properly informs the Miranda custody analysis."

Tuesday, May 24, 2011

BLT, the Blog of the Legal Times, today discusses mistakes made at the highest levels of the Justice Department -- the recent politicization of hiring within the department and the historic injustice of defending of the removal of 120,000 Japanese Americans and Japanese residents from their homes during World War II.

Former AG Gonzales 'Disappointed' in His Own Conduct in DOJ Hiring. In a deposition for an employment case against DOJ, Alberto Gonzales "said for the first time that "I am disappointed that I didn't do things differently" to stop the politicization of the system of hiring career Justice Department attorneys through its honors program during his time in office."

BLT, The Blog of Legal Times reports Judge Rules Swedish Law Firm Can Be Named In Local Malpractice Suit, May 24, 2011 "In a 120-page opinion . . ., a Washington federal judge affirmed that a foreign-based law firm with few physical ties to Washington and limited involvement in an underlying case could still be the target of a legal malpractice suit in Washington based on its communications and visits over the years." The plaintiff is suing both a DC firm and the Swedish firm for malpractice in their handling his his patent infringement cases.

Thursday, May 19, 2011

The Coase Theorem says that parties will negotiate to an efficient distribution of goods—if they have perfect information and there are no transaction costs. Dru Stevenson takes this basic premise about an idealized economic world and uses it to frame his observations of jury selection, a phase of litigation where negotiation is typically absent: the rules and traditions of voir dire make the transactions costs very high.

Not really into law and economics? The article is still worth reading for Stevenson's comments on jury selection. For instance:

the peremptory strike system actually maximizes uncertainty about the jury, rather than neutrality or fairness, by allowing lawyers on each side to deselect jurors who seem favorable to their opponent. In other words, we merely remove those whose biases seem most evident. Given the relationship between predictability and settlement, this means the peremptory strike system has a temporary chilling effect on settlements immediately following the voir dire segment of the litigation.

Id. at 6.

If you'd like to read more about the Coase Theorem—a lot more—see Steven G. Medema & Richard O. Zerbe, Jr., The Coase Theorem (1999), inEncyclopedia of Law and Economics. This huge, scholarly encyclopedia is on the web, free! By the way, Dick Zerbe, from the UW's Evans School of Public Affairs is an adjunct professor in the law school.

Wednesday, May 11, 2011

That's the question investigated by three researchers (David S. Abrams, Marianne Bertrand, and Sendhil Mullainathan) who studied thousands of felony cases in Cook County, IL, initiated between 1995 and 2001. Cases were assigned to judges randomly (and the researchers did some statistical checking to confirm that).

Controlling for a wide range of variables, it turned out that race did make a difference across all judges, and, with some judges it made a very big difference. Black defendanats were more likely to be incarcerated than non-Hispanic white defendants. (This paper does not address Hispanic defendants.)

Comparable defendants had different likelihoods of incarceration depending on which judge they were assigned.

With a judge at the lenient end of the spectrum,
a black male defendant had a 45% chance of incarceration
while a white male defendant had at 35% chance of incarceration.

﻿

Facing a judge at the harsh end of the spectrum, a black male
defendant had a 68% chance of incarceration, compared with
his white counterpart's 40% chance.

﻿There were also differences in the length of sentences imposed (blacks got longer sentences) but these differences weren't statistically significant.

The researchers did not find significant differences based on race of the judge or whether the judge had experience as a public defender.

David S. Abrams, Marianne Bertrand & Sendhil Mullainathan, Do Judges Vary in Their Treatment of Race? (Univ. of Pa. Law Sch. Inst. for Law & Econ. Research Paper No. 11-07), available athttp://ssrn.com/abstract=1800840, J. Legal Studies (forthcoming). The examples about the black and white defendants are drawn from pp. 22-23.

Tuesday, May 10, 2011

Although many people consider jury service on a par with waiting at the DMV, jurors are essential to our judicial processes. The federal Courts website's Educational Resources includes several items about jury service, including jury service basics and two videos on jury service. One of the videos--aimed at high school students--features two judges from the U.S. District Court for the Western District of Washington, Judge Richard Jones and Chief Judge Robert Lasnik.

Jeffrey Toobin profiles Danalynn Recer, a lawyer who specializes in death penalty mitigation in Texas: The Mitigator, The New Yorker, May 9, 2011, at 32.

A greater emphasis on mitigation evidence is one factor in the decline of death sentences in recent years:

The expectations for capital defense practice have also changed over the past twenty years, and it has become less common (and less acceptable) for capital defense lawyers to devote their energies primarily or exclusively to the guilt-innocence phase of capital trials. Capital trial lawyers are more aware of the importance of developing and presenting mitigating evidence and of the need to embrace trial strategies that weave the defense mitigation theory into the guilt-innocence phase of the proceedings. The emergence of "mitigation specialists" as a distinct class of capital trial participants, who coordinate the investigation and presentation of a defendant's family, social, psychological and psychiatric history, represents a marked departure from capital litigation in the immediate post-Furman era; during that period, "generalist" criminal defense lawyers would try capital cases without sufficient attention to the distinctive need to focus their energies toward the fundamental moral question of life-or-death rather than merely to challenge the state's burden of proof on the underlying offense. The changes in expectations regarding the duties of capital trial counsel are reflected in the Court's recent decisions finding ineffective assistance of counsel . . ..

Thursday, April 21, 2011

You can easily tell when Pinocchio is lying because his nose grows longer. But it's a lot harder with flesh-and-blood people.

A recent article in a psychology journal reviews the literature and explains why many standard "rules" are basically hooey. People who are lying don't fidget or avert their gaze more than others, for instance.

The authors go on to propose interviewing techniques for spotting lies. They say it's better to use an information-gathering approach than an accusatory approach. Among other things, they encourage asking temporal questions, using evidence strategically, and asking questions to increase the potential liar's cognitive load (i.e., make it harder for the liar to keep his or her story straight).

Elizabeth F. Loftus has a brief editorial introducing this article: Catching Liars, Psychological Science in the Public Interest, vol. 11 no. 3, at 87-88. One interesting observation, of concern for social justice as well as spotting individual lies:

Using gaze aversion to decide that someone is lying can be dangerous for that someone’s health and happiness. And—what was news to me—some cultural or ethnic groups are more likely to show gaze aversion. For example, Blacks are particularly likely to show gaze aversion. So imagine now the problem that might arise when a White police officer interviews a Black suspect and interprets the gaze aversion as evidence of lying. This material needs to be put in the hands of interviewers to prevent this kind of cross-racial misinterpretation.

It's interesting to me that, steeped in social psychology as she is, Loftus hadn't before focused on cultural differences like this.

(I'm currently reading The Warmth of Other Suns: The Epic Story of America's Great Migration, by Isabel Wilkerson, which piles layer upon layer of incidents when African Americans were slapped down–in small ways and large–for failing to look away and defer to anyone in power, so it's not at all surprising that Blacks would "show gaze aversion." I'm also reminded the passage in David Copperfield, which I just read, where the toadying Uriah Heep explained that his family had been taught "a deal of umbleness--not much else that I know of, from morning to night. We was to be umble to this person, and umble to that; and to pull of our caps here, and to make bows there; and alwasy to knowo our place, and abase ourselves before our betters. And we had such a lot of betters!" It's hard to like Heep, but this passage explained that his damage had causes beyond himself. Heep often was lying, of course, but you couldn't have told that by his "umbleness" alone.)

Lindell's career has focused on criminal defense, first with SCRAP and then in private practice. One case discussed is an appeal currently pending in the Washington Supreme Court challenging the statute that allows propensity evidence in sexual abuse cases (RCW 10.58.090). See earlier post about this case in Division I.

The article discusses several other cases in which Lindell represented criminal defendants. And there's one case where his work on behalf of a private client led to a successful prosecution. A child had drowned when in the care of her stepfather. Investigators originally ruled it an accident, but the mother thought her husband had killed the little girl. Lindell's work on a wrongful death suit (that was dropped) led to the prosecution and conviction of the stepfather -- the justice the mother wanted.

The authors examined 1,112 parole rulings by 8 Israeli judges during 50 court days over 10 months. Each day included a late-morning snack break (usually a sandwich and fruit) and a lunch break. The judges did not control the order of the cases that came before them, and they didn't know the content of each case until it was presented. Again and again, it turned out that prisoners whose cases were heard first thing in the morning or shortly after one of the breaks. The stats are striking: The authors didn't ask the judges whether having a snack (or meal) simply put them in a better mood and made them more sympathetic to parole petitions. Perhaps there's an effect due to mental fatigue in doing repeated tasks or low blood glucose levels as the court session wears on.

Graphics: (1) sandwich and fruit by mw; (2) graph, showing jump in favorable decisions after each break, from article.

How can you learn about this diverse field? What are the leading works, what organizations work in the area, where are there standard datasets to use? A librarian at Fordham has prepared an excellent guide: Alissa Black-Dorward, Empirical Research (posted April 1, 2011). Tabs lead you to

General Materials

Statistical Software and Instruction

Survey Research

Banking

Courts, Judges & Lawyers

Crime and Criminal Justice

Economics, Business & Finance

Environment

Evidence

Foreign & International

Health

Intellectual Property

Social Science Statistics

State Statistics

Some of the information in the guide is tailored to Fordham, but you can find the equivalent here. For instance, our library has many of the books cited (although perhaps with different call numbers) and the UW has its own Human Subjects Division for ensuring ethical practices. ---------------------------------- This post is copied from Gallagher Blogs, on the assumption that many readers of Trial Ad Notes don't read the law library's blog (although you're welcome to, of course) but would be interested in this topic.

Wednesday, March 30, 2011

Here is a guest post by Maureen Howard: We all know how brilliant our own Professor Eric Schnapper is and realize that among his many, many accomplishments are two USSC "wins" this Term, but I write to report that you haven’t lived until you’ve see him stand and argue before the Court in person. I was fortunate to enjoy this honor yesterday when he argued Borough of Duryea v. Guarnieri, dealing with the protections afforded a government employee under the Petition Clause of the First Amendment. Professor Schnapper’s argument was clear and compelling, and he masterfully fielded questions from the justices. As a teacher of advocacy, I was mightily impressed. As a colleague, I was so very proud. It was also a memorable day in the Court because prior to argument, Justice Breyer read a summary of the Kasten decision handed down [March 22], which was the second of Professor Schnapper’s "wins" of the term. Joining Professor Schnapper at respondent’s counsel table sat the lawyer who had (unsuccessfully) argued the other side of the Kasten case, an alliance I am sure was not lost on the justices. A personal memorable moment for me occurred just prior to argument when Professor Schnapper moved from the floor for my admission to the Court. Chief Justice Roberts granted the motion, welcomed me to the Court, and directed the clerk to administer the oath. Photos: Eric Schnapper from University of Washington School of Law; Supreme Court bench from United States Supreme Court.

I learned of the symposium from a Penn State law professor who gives it this endorsement:

The 2010 Cardozo Symposium entitled “New Perspectives on Brady and Other Disclosure Obligations: What Really Works” is important reading for all lawyers – regardless of specialty or country – because we all have an interest in participating in a legal system that has a robust rule of law. Corruption or even misunderstandings about prosecutor conduct, including disclosure duties, can undermine public confidence and also the confidence of the legal profession in our legal system.. . .Even if you do not study criminal justice issues, you should read the Foreword in order to develop a better appreciation of issues that are critical to the rule of law and to see additional examples of how systemic, ex-ante approaches . . . can be used when designing legal systems and rules.